Fired Whistle Blower gets Back Pay, Bonus for Reporting Unsafe Needle Practices

June 1st, 2015

Fired Whistle Blower gets Back Pay, Bonus for Reporting Unsafe Needle Practices

Often viewed as a paper tiger with plenty of regs but little political support or manpower to enforce them, OSHA shatters this perception every once in a while by taking aggressive action. Did you know that any dissatisfied employee in your health care facility can trigger an OSHA visit by reporting unsafe working conditions? OSHA takes these “whistle blower” calls seriously and protects workers who make them. Consider the case of an unnamed dental assistant who was fired after duly noting that a recent policy change at the office put health care workers at risk of needlesticks and sharps injuries.

The incident began when Massachusetts dentist Dr. N. Terry Fayad changed his practice's procedure for disposing of contaminated needles, OSHA reported. The dentists told office staff to first remove the protective caps before dropping the needles into sharps disposal containers. According to OSHA, the practice was allegedly to fill the containers with more used needles and reduce the frequency and cost of their disposal.

Concerned that she and her co-workers could be exposed to needlestick injuries and the risk of infection from bloodborne pathogens such as hepatitis and HIV, the dental assistant raised the issue with the dentist. When he dismissed her concern she filed a complaint with OSHA, the agency reported. After an OSHA inspector visited on Nov. 23, 2010, Dr. Fayad fired her later that day.

A whistleblower investigation followed and, in September 2011, the Department of Labor sued Fayad in the U.S. District Court for the District of Massachusetts. In its complaint, the department charged that the dentist violated the anti-retaliation provisions of the Occupational Safety and Health Act. The suit eventually went to trial before U.S. District Judge George A. O'Toole.

Judge O'Toole has ruled in favor of the department and ordered Fayad's practice, N. Terry Fayad, DMD, PC, to pay the worker $51,644.80 in back wages and ordered both Fayad and the practice to pay her $33,450.26 in compensatory damages. The judge found that the employee's firing by Fayad shortly after OSHA began its inspection was retaliatory and a violation of section 11(c) of the OSH Act.

"This worker suffered needless financial and emotional distress because Dr. Fayad chose to disregard a clear and important principle: Employees have the right to contact OSHA and raise workplace health and safety concerns with their employer without fear of termination or retaliation," said Greg Baxter, OSHA's acting regional administrator for New England. "Employers must pay attention to this verdict. It makes it clear that there will be legal and financial consequences if you retaliate against your employees in this manner."

And the OSHA inspection that led to the firing? Violations of OSHA's bloodbornepathogen and hazard communication standards resulted in finds of $11,000, which the dentist paid in 2012. For more on this story see the July 2015 issue of Hospital Employee Health.